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Following Virginia v. Black, the Supreme Court emphasized in Snyder v. Phelps6 that
speakers have a right to free and offensive speech so long as it peaceful. Though their speech
was insensitive and offensive, the Westboro Baptist Church were allowed to picket at funerals
since they expressed public concerns in a public space and notified authorities that they intended
to protest in front of the church. Whether or not the deceased persons dignity was harmed did
not matter.
Therefore, it is clear from these three cases that the Charlie Hebdo publications would be
allowed in the United States on the basis that the free flow of ideas is valued, the cartoonists did
not intend to incite physical violence, and the cartoons were published in the print medium.
Regarding laws on discrimination and defamation, Professor Kahn argues that race and
religion are regarded differently.7 L. Becket Graham, program officer for the Becket Fund for
Religious Liberty, articulates the distinction of race and religion, which is telling of the popular
view that they are separate:
Race is something I simply cant change. My skin is white and that is not something I
choose or am able to alter. Religion on the other hand, even as it has communal expression and
purpose, is something that exists in the forum internum and calls to choice of the conscience.
Moreover, my understanding of belief and ultimate truth will probably continue to change,
evolve, and mature, although I believe that the truth itself does not. Thus, the law must treat race
and religion differently.8
Accordingly, religiously offensive speech will be justified by allowing marketplace of
ideas.9 The next section of this paper evaluates Germanys influential cases in regard to
offensive speech and its justifications for restricting the Charlie Hebdo publications.
Offensive Speech in Germany
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While the United States has an absolute regard for free speech, Germany has an absolute
regard for human dignity. The Mephisto10 case was very telling of Germanys position when
artistic speech and offensive speech are in conflict with one another. In the Mephisto case, the
adopted son of Gustaf Gruendgens brought to trial Klaus Mann for publishing a fictional book,
Mephisto, which was clearly written about his deceased father in an insulting and distortful
way.11 While Article 5.3 of the Basic Law states that, Art, as well as science, research and
teaching, shall be free, the German Court recognized that there was a conflict with the first
premise of the Basic Law.12 The Court declared, The right of freedom [of art] is not granted
without limits. Like all basic rights, the guarantee of freedom in Article 5.3. first sentence of the
Basic Law presumes the Basic Law's image of man, which is that of man as being a personality
who is responsible for his own life and who develops freely within the social community.13 The
German Court found that human dignity was more important than freedom of speech.
Accordingly, the Court determined that that Gustaf Gruendgens right to dignity still existed
even though he was dead.
In the Deutschland Magazin14 case, the German Federal Court reaffirmed that it has
supreme right to intervene and determine the outcome of a case when two conflicting principles
come into play.15 The Deutschland Magazin case involved a labor press union service
distributing an article that asserted the conservative Deutschland Magazin was a right radical
hate sheet.16 Since the statement was already made, the German Court ruled that the labor union
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12
13
RAY D. MADOFF, IMMORTALITY AND THE LAW: THE RISING POWER OF THE AMERICAN DEAD 126 (2010).
HUMAN & CONSTITUTIONAL RIGHTS (Apr. 12, 2015), at http://www.hrcr.org/safrica/dignity/30bverfge173.html
Id.
42 BVerfGE 143 (1976).
15
Olha O. Cherednychenko FUNDAMENTAL RIGHTS, CONTRACT LAW AND THE PROTECTION OF THE WEAKER
PARTY, 83 (2007).
16
Quint, Peter E., Free Speech and Private Law in German Constitutional Theory, 48 Md. L. Rev. 247 (1989).
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